Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.
In this medical malpractice action plaintiff appeals from a judgment in favor of defendants which was entered on a jury verdict of no cause of action.
Defendants are partners specializing in the practice of orthopedics. On October 30, 1960 plaintiff fell while at work, sustaining a comminuted fracture of his right tibia and fibula. He was taken to the emergency room of Riverview Hospital in Red Bank where he was treated by defendant Winters. Thereafter, both defendants treated plaintiff continuously until July 14, 1961. There was some dispute as to the circumstances surrounding the termination of this care and treatment. In any event, plaintiff consulted Dr. Anthony Pisani in September 1961, who advised surgery to correct the condition he found on examination. Doctor Pisani operated upon plaintiff in November 1961, removing cartilage and resetting the break of the fractured bones.
In his complaint plaintiff alleged inter alia that defendants "negligently failed to apprise plaintiff of his need for further surgery, and did conceal from the plaintiff his need for further surgery * * *." (Emphasis added)
On this appeal plaintiff argues that (1) the court erred in refusing to instruct the jury to consider whether or not defendants fraudulently concealed from plaintiff his true condition, and concerning the law on such a cause of action; (2) the court abused its discretion in the latitude and scope allowed to defendants on cross-examination of plaintiff's expert; (3) the summation of defense counsel so exceeded the bounds of proper advocacy as to constitute plain error, and (4) the court erred in refusing to instruct the jury that they could draw an unfavorable inference from defendants' failure to produce an expert witness listed in answers to interrogatories, and in restricting plaintiff's summation thereon.
Plaintiff submitted the following written request to charge:
"The relationship of a physician-patient is fiduciary in character and silence by either defendant when there is a duty to disclose the true nature of plaintiff's condition constitutes fraudulent concealment upon which liability can be predicated."
In relation to this point the judge charged as follows:
"It is contended by the plaintiff that there was a failure on the part of the respective defendants to advise the plaintiff of his condition, which constituted a deviation and violation of good medical practice, and that as a proximate result thereof he sustained injuries * * * to a greater extent than would have normally followed his accident of October 30, 1960.
You will recall it was contended by the plaintiff that there was a failure to disclose the true nature of his condition, and that he was abandoned by the defendant or defendants, as the case may be. In this instance, I think he referred to Doctor Winters. However, it will be your recollection that will control. In order to establish such an abandonment, you must determine whether the treatment was unjustifiably terminated by Doctor Winters, or that he refused to treat the plaintiff at the time when treatment was needed, or that he withdrew from the case without consent of the plaintiff, or that he told the plaintiff no further treatment was needed at the time when future treatment was needed. You will recall further that this is categorically denied by the defendants, and therefore becomes a question of fact for you the jury to determine within the rules of law as the Court has already charged you." (Emphasis added)
At the conclusion of the charge exception was taken as follows:
"In substance, you covered my charge, but maybe I didn't hear right, in number twelve you said there was a contention there was a concealment, but you didn't go further, if you find that there is a duty to disclose, if you find they didn't disclose, and if you find this constitutes fraudulent concealment upon which liability alone can be predicated.
THE COURT: I refuse to charge that in the language that you have it stated. I think I have included all ...